David Souter isn't the most urbane of Supreme Court justices. He sought no judicial stardom and gives no interviews. He doesn't hit the Washington party circuit, and gets out of the city whenever he can. He'd rather be home, in North Weare, N.H., in an old farmhouse on a dirt road, where he lives alone, surrounded by books.
David Souter isn't the most urbane of Supreme Court justices. He sought no judicial stardom and gives no interviews. He doesn't hit the Washington party circuit and gets out of the city whenever he can. He'd rather be home in North Weare, N.H., in an old farmhouse on a dirt road, where he lives alone, surrounded by books.
That's where he's going now, after 19 years on the nation's highest court, back to the mountain trails and the life of the mind, where he is more comfortable than in the public spotlight.
Call him cerebral, detached, even eccentric. But Souter knew enough about the real world to understand what happened to Lilly Ledbetter.
Lilly Ledbetter was a supervisor at the Goodyear Tire plant in Gadsden, Ala., the only woman working with 15 men. Late in her career, she learned that over nearly 20 years, her male colleagues kept getting bigger raises than her. By 1998, she was making 40 percent less than the men, and she sued, charging age discrimination.
Her case went all the way to the Supreme Court, which shot her down. Five justices, taking the narrowest interpretation of the law, said she couldn't collect damages because the statute says you must sue within 180 days of the discriminatory act - and they figured the clock started the day she was hired.
But that's not how the real world works, argued the four-judge minority, Souter included. In the real world, people don't know how much their colleagues make. Every discriminatory paycheck was a separate act, so Ledbetter should have been able to sue whenever she discovered it.
That belief was justified by one interpretation of the law, but it also aligned with justice and common sense. It showed an appreciation for how the law touches people's lives. There's a word for that: empathy.
Barack Obama may well be thinking about Lily Ledbetter when he talks about including empathy in his list of qualifications for the candidate he nominates to replace Souter on the Supreme Court. After all, the first bill Obama signed into law was the Lilly Ledbetter Fair Pay Act of 2009, which promises no victim of discrimination will get caught in that trap again.
But empathy is becoming a dirty word for those already working to derail Obama's first Supreme Court nominee - whoever that may be. Courts are there to enforce the law, not understand people's lives, they say. "Empathy," they say, is code for "judicial activism," which is a rhetorical club conservatives have been using against judicial nominees they don't like for half a century.
"Empathy," Obama's opponents warn, means judges who make up the law to suit their political agendas. It's a funny thought coming from the people who cheered as the Supreme Court chose the president in 2000, on a 5-4 vote, but let's not go there yet.
First, let's note that empathy isn't the only thing Obama says he's looking for in a justice. "I will seek somebody with a sharp and independent mind and a record of excellence and integrity," he said. "I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role."
But "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives."
That idea is hardly radical. What's radical is a theory of judicial reasoning, favored by the Scalia wing of the court, that insists that the Constitution's only relevant reference points are in the minds of the men who wrote it in 1789. What's dangerous are judges who consider the impact on living human beings inadmissible in court arguments. Dred Scott, anyone?
Five words, carved in granite over the Supreme Court's front door, clarify the distinction: "Equal justice under the law."
The law is the means. Justice is the goal.
Empathy, like common sense, is neither liberal nor conservative. Sandra Day O'Conner was no liberal, but her opinions were grounded in the real world, which made her influential - and infuriated the ideologues.
If all you see on the Supreme Court is left and right, liberal and conservative, whatever choice Obama makes promises no surprise. Obama will nominate someone who'll vote to uphold Roe v. Wade, a liberal to take Souter's seat in the court's liberal bloc.
Under this assumption, nothing changes. That's why people obsess about superficial characteristics. Should it be another woman? Is it time for the court's first Hispanic justice? How about an openly gay justice? It's puzzling that while we aspire to make the law and the courts blind to such distinctions, we make them a test for Supreme Court justices.
The liberal vs. conservative simplification also does a disservice to the law, which isn't just a test of policies we like or don't like, and to the Supreme Court, which is an institution guided by nine complicated humans, appointed for life.
Each brings his or her own intellectual gifts, political skills, legal interpretations and personality to the bench. And as with nine players on a baseball team, how they mesh together is as important to the state of play as their individual skills. That's why Obama is looking at the person in the judicial robes, not just the opinions he or she has written.
Much as some would like to paint the court's work as happening in the realm of pure reason, it is also a very small club where personalities, politics and persuasion are part of the mix.
How they mix can have serious implications for the country. Chief Justice Earl Warren, a former governor of California, brought political skills as well as legal knowledge to the bench. So he understood how important it was that Brown v. Board of Education, the landmark 1954 ruling desegregating the nation's schools, be a unanimous decision - and he prodded and persuaded his colleagues to go along.
It is said Souter's greatest disappointment was his failure to get his colleagues to agree to a compromise in Bush v. Gore that would have allowed all of Florida's votes to be counted. Souter, like all his colleagues, came from the appellate courts, not politics. Their inability to reach consensus in that case did immeasurable damage to the court and the country.
As a former professor of constitutional law, Obama is well-versed in the legal theories that bound Supreme Court deliberations. But he is also a pragmatist who understands that leadership will be more important than ideological purity if his nominee is to move the court in a new direction.
Obama's personal history is also instructive. A freshly-minted Harvard Law grad, he turned down a prestigious clerkship for a federal appeals court in favor of community organizing, civil rights law and a career in politics. He'll surely pick someone well-versed in the thoughts of Madison, Hamilton and the other giants of constitutional law, but the best nominee will be one who understands Lilly Ledbetter as well.
Rick Holmes, opinion editor of the MetroWest Daily News, blogs at Holmes & Co. (http://blogs.townonline.com/holmesandco). He can be reached at email@example.com, and you can follow him on Twitter at HolmesAndCo.